Mendler v. Mendler

Appellate Division of the Supreme Court of New York

Mendler v. Mendler

245 A.D.2d 199, 666 N.Y.S.2d 601, 1997 N.Y. App. Div. LEXIS 13306

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1997

StatusPublished

This text of 245 A.D.2d 199 (Mendler v. Mendler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mendler v. Mendler, 245 A.D.2d 199, 666 N.Y.S.2d 601, 1997 N.Y. App. Div. LEXIS 13306 (N.Y. Ct. App. 1997).

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Opinion

—Judgment, Supreme Court, New York County (Carol Huff, J.), entered on November 4, 1996, which, inter alia, granted petitioner husband’s application to discharge a second mortgage he had given to respondent wife, and denied petitioner’s motion for counsel fees, and bringing up for review a prior order, entered on or about November 18, 1994, which denied respondent’s cross motion to dismiss the petition for lack of subject matter jurisdiction, unanimously affirmed, with costs.

While the parties’ separation agreement was silent as to whether petitioner could prepay the mortgage, the mortgage agreement contained a clause permitting prepayment, thus rebutting the presumption that prepayment was not permitted (see, Matter of Arthur v Burkich, 131 AD2d 105, 106). Furthermore, reading the separation agreement and the mortgage together as parts of a single transaction, we find that the parties intended that the mortgage was to secure only the outstanding principal and interest thereon, and that the other debts were to remain unsecured. Accordingly, petitioner was entitled to a satisfaction of the mortgage upon his tender of the principal and the interest due through the date of tender (see, Three Bros. Estates v Guli, 205 AD2d 525; compare, Matter of Jeffrey Towers v Straus, 31 AD2d 319, affd 26 NY2d 812). We have considered the parties’ remaining contentions for affirmative relief and find them to be without merit. Concur—Murphy, P. J., Milonas, Wallach, Rubin and Mazzarelli, JJ.

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—Judgment, Supreme Court, New York County (Carol Huff, J.), entered on November 4, 1996, which, inter alia, granted petitioner husband’s application to discharge a second mortgage he had given to respondent wife, and denied petitioner’s motion for counsel fees, and bringing up for review a prior order, entered on or about November 18, 1994, which denied respondent’s cross motion to dismiss the petition for lack of subject matter jurisdiction, unanimously affirmed, with costs.

While the parties’ separation agreement was silent as to whether petitioner could prepay the mortgage, the mortgage agreement contained a clause permitting prepayment, thus rebutting the presumption that prepayment was not permitted (see, Matter of Arthur v Burkich, 131 AD2d 105, 106). Furthermore, reading the separation agreement and the mortgage together as parts of a single transaction, we find that the parties intended that the mortgage was to secure only the outstanding principal and interest thereon, and that the other debts were to remain unsecured. Accordingly, petitioner was entitled to a satisfaction of the mortgage upon his tender of the principal and the interest due through the date of tender (see, Three Bros. Estates v Guli, 205 AD2d 525; compare, Matter of Jeffrey Towers v Straus, 31 AD2d 319, affd 26 NY2d 812). We have considered the parties’ remaining contentions for affirmative relief and find them to be without merit. Concur—Murphy, P. J., Milonas, Wallach, Rubin and Mazzarelli, JJ.

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Bluebook (online)

245 A.D.2d 199, 666 N.Y.S.2d 601, 1997 N.Y. App. Div. LEXIS 13306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendler-v-mendler-nyappdiv-1997.

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